HB 1293 2003
1	A bill to be entitled
2	An act relating to certificates of need; amending s.
3	408.039, F.S.; eliminating the requirement that an
4	existing health care facility must be in the same district
5	to initiate or intervene in an administrative hearing
6	regarding the issuance of a certificate of need; requiring
7	health care facilities that challenge the issuance of a
8	certificate of need to post bond or establish an escrow
9	account; providing for an award and recovery of certain
10	costs and revenue losses by successful certificate of need
11	applicants from facilities that challenge the issuance of
12	the certificate of need; providing for the award to be
13	made by an administrative law judge and to be enforceable
14	as an agency final order; providing an effective date.
15
16	Be It Enacted by the Legislature of the State of Florida:
17
18	Section 1. Subsection (5) of section 408.039, Florida
19	Statutes, is amended to read:
20	408.039 Review process.--The review process for
21	certificates of need shall be as follows:
22	(5) ADMINISTRATIVE HEARINGS.--
23	(a) Within 21 days after publication of notice of the
24	State Agency Action Report and Notice of Intent, any person
25	authorized under paragraph (c) to participate in a hearing may
26	file a request for an administrative hearing; failure to file a
27	request for hearing within 21 days of publication of notice
28	shall constitute a waiver of any right to a hearing and a waiver
29	of the right to contest the final decision of the agency. A copy
30	of the request for hearing shall be served on the applicant.
31	(b) Hearings shall be held in Tallahassee unless the
32	administrative law judge determines that changing the location
33	will facilitate the proceedings. The agency shall assign
34	proceedings requiring hearings to the Division of Administrative
35	Hearings of the Department of Management Services within 10 days
36	after the time has expired for requesting a hearing. Except upon
37	unanimous consent of the parties or upon the granting by the
38	administrative law judge of a motion of continuance, hearings
39	shall commence within 60 days after the administrative law judge
40	has been assigned. All parties, except the agency, shall bear
41	their own expense of preparing a transcript. In any application
42	for a certificate of need which is referred to the Division of
43	Administrative Hearings for hearing, the administrative law
44	judge shall complete and submit to the parties a recommended
45	order as provided in ss. 120.569 and 120.57. The recommended
46	order shall be issued within 30 days after the receipt of the
47	proposed recommended orders or the deadline for submission of
48	such proposed recommended orders, whichever is earlier. The
49	division shall adopt procedures for administrative hearings
50	which shall maximize the use of stipulated facts and shall
51	provide for the admission of prepared testimony.
52	(c) In administrative proceedings challenging the issuance
53	or denial of a certificate of need, only applicants considered
54	by the agency in the same batching cycle are entitled to a
55	comparative hearing on their applications. Existing health care
56	facilities may initiate or intervene in an administrative
57	hearing upon a showing that an established program will be
58	substantially affected by the issuance of any certificate of
59	need, whether reviewed under s. 408.036(1) or (2), to a
60	competing proposed facility or program within the same district.
61	(d)1. A facility seeking to challenge or intervene in the
62	issuance of a certificate of need shall be required to place in
63	escrow or acquire and provide a bond in an amount equal to 25
64	percent of the proposed project cost or $500,000, whichever is
65	greater.
66	2. Should the challenge to a certificate of need
67	application fail and the application be approved in a final
68	order no longer subject to appeal, the applicant may recover
69	from the challenging facility all costs of litigation, including
70	a reasonable attorney’s fee, as well as the value of the net
71	revenue lost by the applicant as a result of the delay in
72	issuance caused by the challenge. The amount of the costs and
73	lost revenues shall be determined by an administrative law judge
74	of the Division of Administrative Hearings as a final order.
75	3. An award provided under subparagraph 2. shall be
76	recovered from the escrow account established under subparagraph
77	1. If the amount in the escrow account is insufficient to cover
78	the total amount to be recovered, the balance shall be
79	enforceable as an obligation created by final order of the
80	agency.
81	4. In lieu of establishing the escrow account required
82	under subparagraph 1., a bond in the same or greater amount may
83	be provided to satisfy such requirement.
84	(e)(d)The applicant's failure to strictly comply with the
85	requirements of s. 408.037(1) or paragraph (2)(c) is not cause
86	for dismissal of the application, unless the failure to comply
87	impairs the fairness of the proceeding or affects the
88	correctness of the action taken by the agency.
89	(f)(e)The agency shall issue its final order within 45
90	days after receipt of the recommended order. If the agency fails
91	to take action within such time, or as otherwise agreed to by
92	the applicant and the agency, the applicant may take appropriate
93	legal action to compel the agency to act. When making a
94	determination on an application for a certificate of need, the
95	agency is specifically exempt from the time limitations provided
96	in s. 120.60(1).
97	Section 2. This act shall take effect July 1, 2003.